E. Bhoshanam vs Polla Malliah

A.D.V. Reddy, J.—On a charge-sheet filed by the Police of Kowdipally u/s 447, I.P.C., against the sole accused, the Munsif Magistrate, Medak, passed the following order 3

Accused and P.Ws. absent. Summons to P.Ws. not returned. Evidence not produced. Case proceeded with. Absence of accused condoned. Judgment delivered acquitting accused u/s 245. Cr. P. C.

It is the setting aside of this order that the Sessions Judge, Medak at Sangareddy has recommended in this reference made u/s 438, Cr. P. C.

In a summons case when the accused pleads not guilty, the Court is expected to take all the evidence produced on behalf of the complainant u/s 244 of the Code of Criminal Procedure and after such evidence is produced, if the Court finds, after examining the accused, that the accused is not guilty it shall record a finding of acquittal. By the mere non-production of the witnesses, the Court cannot resort to the provisions of Section 245, Cr. P. C. and acquit the accused, who was also not present on that day. If the case had been taken on file on a private complaint for the offence u/s 447, I.P.C. and the complainant had not been present, resort could have been had to Section 247, Cr. P. C. But this being a Police case, proceedings instituted on a charge-sheet filed by them, it is open to the Court to act u/s 249, Cr. P. C. and stop the proceedings at any stage recording any reasons therefore and without pronouncing any judgment either of acquittal or conviction, but on no account can the Court acquit the accused u/s 245, Cr. P. C. without examining the witnesses. Vide (Kota) Potharaju--Prisoner Vs. Emperor, and Kadutha Kadutha Vs. Kunjupanicken Kesaven and Others, (Trav. Co.). The reference is, therefore, accepted. The order of the Magistrate is set aside. He is directed to proceed with the case according to law.